RECRUITMENT AND PLACEMENT

RECRUITMENT OF LOCAL AND MIGRANT WORKERS

What is recruitment and placement?
o Any act of:
Canvassing, enlisting, contracting,
Transporting, utilizing, hiring, procuring workers
Includes referrals, contact services, promising or advertising
employment for profit or not, here or abroad
o When is there a presumption of R&P?
When a person or entity offers or promises for a fee
employment to two or more persons
o How do you harmonize the definition and the presumption?
Any one act under the definition is sufficient to establish R&P,
regardless of number of persons. The presumption is only a
rule of evidence which operates when there are two persons
to whom employment is promised for a fee and the acts
defined above cannot clearly be established.
o Who are workers?
All members of the labor force, whether employed or
unemployed
What is the State policy under MWA?
o Promotion of overseas recruitment is not State policy, because it
seeks to create local opportunities. But while there are workers
deployed abroad, there must be protections for them.
o Does the POEA have jurisdiction over ER-EE relations cases
for OFWs?
Not anymore. Its been retransferred to NLRC. The POEA
only handles administrative cases.
o What is the nature of employment of seafarers?
They are contractual employees
Differentiate license from authority:
o License is authorization to operate a private employment agency.
A Private Employment Agency is an entity engaged in R&P for a
fee (charged from employer, worker, or both)
o Authority is authorization to operate a private recruitment entity. A
Private Recruitment Entity is an entity engaged in R&P without
charging any fee
Illegal recruitment
o What is the definition of illegal recruitment under the LC?
Any recruitment activities (Art. 13) or prohibitions (Art. 34)
undertaken by non-licensees or non-holders of authority
o What is the definition of illegal recruitment under the MWA
(RA 8042)?
Any recruitment activities (Art. 13) undertaken by
 non-licensees or non-holders of authority
Any prohibited acts (Art. 34), whether licensed or
non-licensed
o What are the prohibited acts (Art. 34)?
1. Overcharging (whether vis--vis schedule of fees or what
has been loaned/advanced)
2. Public false information re: recruitment
3. Misrepresentation to secure license or authority
4. Induce or attempt to induce employed worker to leave job
to offer him to another
Except to save him from oppressive employment
5. Influence employer not to hire worker unless coursed
through his agency
6. Engage in R&P for harmful or anti-public policy work
7. Obstruct or attempt to obstruct inspection by Sec of Labor
or representatives
8. Fail to file reports required by Sec of Labor
9. Substitution or alteration of approved contracts without
approval of Sec of Labor
10. Becoming officer or being involved in management of
travel agency
11. Withhold or deny travel documents from workers before
departure due to financial considerations
Unless authorized by LC
o What are the additional grounds added by MWA, apart from
these?
12. Failure to deploy the worker without valid reason
13. Failure to reimburse worker when deployment does not
happen without his fault
Differentiate simple illegal recruitment, illegal recruitment in large
scale, illegal recruitment as syndicate:
o Large scale if committed against 3 or more persons individually
or as a group
o By a syndicate carried out by a group of 3 or more persons
conspiring or confederating with each other
o What are these two types of illegal recruitment called?
Illegal recruitment as economic sabotage
Can illegal recruitment and estafa coincide?
o If there are pecuniary damages due to previous or simultaneous
false pretense resorted to by the entity, then the latter can be sued
for estafa under Art. 315
o This suit may prosper aside from illegal recruitment
What are the liabilities of the local employment agency and the
employer?
 o The agency is solidarily liable for the unpaid salaries of the worker,
along with the principal/employer. This holds true even if the
agency agreement has been severed, if no notice was given to
the employee.
o What is the theory of imputed knowledge?
The presumption that knowledge of he agent can be ascribed
to the principal as well.
o When is an employee of the entity liable as a principal?
When he had knowledge of the offense and had active and
conscious participation. NOT liable as principal when merely
carrying out orders of superior.
What is the rule on pre-termination of contract of a MW?
o If there was pre-termination without just cause, the employer will
be ordered to pay the workers:
o 1. Full placement fee with 12% interest AND
o 2. Salary for unexpired portion of the contract OR for 3 months for
every year of the unexpired term, whichever is lesser
o Isnt this unconstitutional?
Yes, according to Serrano v. Gallant, but R.A. 10022 passed
1 year after reinstated the provision
Is direct hiring allowed for overseas employment?
o As a general rule, no, direct hiring is not allowed. It must be
through boards and authorized entities.
o What are the exceptions?
1. Diplomatic corps
2. IOs
3. Other employers allowed by the DOLE
What is the rule on employment of Non-Resident Aliens?
o Either the alien or the employer must obtain an employment
permit from the DOLE
o When is the permit issued?
Upon determination of non-availability or a person in the
Philippines who is competent, able, and willing at the time of
application to perform the services for which the alien is
desired
o What is the special rule for those preferred areas of
investment?
Permit issued upon recommendation of the government
agency in charge of that enterprise
Upon issuance of the employment permit to the NRA, what are
the regulations?
o Cannot transfer employment without prior approval from DOLE
Secretary
o Else, punished under the LC and/or deported
REGULATION AND ENFORCEMENT
What is the rule on remittance of foreign exchange earnings?
o Employment contracts must contain a proviso that makes
remittance of the following rates mandatory
1. Seamen 70% of basic salary
2. Workers of Filipino contractors or construction firms 70%
3. Doctors, nurses, engineers, teachers, other professionals
whose contract gives free board and lodging 70%
4. Professionals without free board and lodging 50%
5. Domestic and service workers 50%
6. All others 50%
What are regulations?
o 1. Travel agents and sales agencies of airline companies cannot
engage in R&P for overseas employment, w/n for profit
o 2. Citizenship requirement for recruitment entities:
Filipino
OR 75% Filipino ownership (authorized and voting stock)
o 3. Minimum capitalization as required by Sec. of Labor
o 4. Non-transferability of authority or license
Cannot transfer to another person or use in another place
What if you want to transfer offices?
Get prior approval of Sec. of Labor, as with appointing an
agent or getting additional offices
What are the prohibited activities?
o See above enumeration (Art. 34)
What is the nature of the regulatory and visitorial powers of the
Labor Secretary?
o The Secretary can restrict and regulate R&P activities of all
agencies covered
o Can issue orders and R&Rs
o Visitorial Powers Sec of Labor or representatives may inspect
premises, inspect books/records of entities, require submission of
reports, etc.
What must be given by those applying for license or authority?
o 1. Prescribed registration fees
o 2. Cash/surety bonds to guarantee compliance with provisions
What is the nature of the license?
o It is beyond the commerce of man, and subject to prior approval
What are the penalties for illegal recruitment?
o 1. Simple illegal recruitment 12 y 1 d to 20 y imprisonment
And fine of P1M to 2M
o 2. Economic sabotage life imprisonment
And fine of P2M to 5M
Maximum if the one recruited is less than 18 years, or
 committed by a non-licensee or holder of authorization
o 3. Prohibited acts 6 y 1 d to 12 y
And fine of P500K to P1M
If alien, deported without further proceedings
o 4. In all cases:
REVOKE LICENSE OR AUTHORIZATION